Staunton v Cavallaro (No 3) - [2013] NSWLC 6

Local Court

New South Wales

Medium Neutral Citation: Staunton v Cavallaro (No 3) [2013] NSWLC 6
Hearing dates: By written submissions
Decision date: 07 February 2013
Jurisdiction: Civil
Before: Magistrate O'Brien
Decision:
1. Further to order v) made 14 December 2012, it is ordered:
i) That the defendants are to pay the plaintiffs costs on the ordinary basis up to and including 22 September 2011.
ii) That the defendants are to pay the plaintiffs costs on an indemnity basis from 23 September 2011.

Catchwords: CIVIL LAW - costs - indemnity costs - Calderbank offers - principles
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules
Cases Cited: Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109
Calderbank v Calderbank [1975] 3 All ER 333
Chief Commissioner of State Revenue v Platinum Investments Management Ltd (No 2) [2011] NSWCA 197
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Hamod v State of New South Wales (2002) 188 ALR 659
Harrison v Schipp [2001] NSWCA 13
Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242
Leichhardt Municipal Council v Green [2004] NSWCA 341
Ofria v Cameron (No 2) [2008] NSWCA 242
Texts Cited: Civil Trials Bench Book, Judicial Commission of New South Wales
'Calderbank Offers', Justice M J Beazley AO
Category: Costs
Parties: Victoria Lee Staunton (first plaintiff)
Patrick Joseph Staunton (second plaintiff)
Tom Paul Cavallaro (first defendant)
Tom Paul Cavallaro Pty Ltd (second defendant)
Representation: Mr B Gilbert (for the plaintiffs)
Mr J Brigden (for the defendants)

File Number(s): 2011/00233066

Judgment

On 14 December 2012 in the Local Court at Port Macquarie my principal judgment in this matter was handed down by his Honour Magistrate Hodgson.

That decision provided in essence that judgment be entered for the plaintiffs in the sum of $62,080.30 plus interest and costs. At the time, Magistrate Hodgson granted liberty to the parties to apply to me for further orders in respect of the precise terms of the costs order I had made.

On 17 December 2012, and at a time when I was on leave, the plaintiffs' solicitors wrote to me seeking that I make costs orders in the following terms:

(1) That the defendants pay the plaintiffs' costs on a party-party basis up to and including 22 September 2011.

(2) That the defendants pay the plaintiffs' costs on an indemnity basis from 23 September 2011.

I take the first order sought by the plaintiffs to in fact be an application that costs be paid by the defendants on an ordinary basis between the dates specified. In support of the application for indemnity costs the plaintiffs rely upon an offer made by them on 22 September 2011 to settle the proceedings for an amount of $70,000 inclusive of costs, and the principles established in Calderbank v Calderbank [1975] 3 All ER 333.

On 10 January 2013 and while I remained on leave the plaintiffs' solicitors…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWLC 6
Decision Date: 07 February 2013

CaseChat Overview and Summary

The case of Staunton v Cavallaro (No 3) involved the plaintiffs seeking indemnity costs from the defendants following a series of legal proceedings. The matter was heard in a higher court, with the plaintiffs arguing that they were entitled to indemnity costs due to the defendants' unreasonable conduct during the litigation. The defendants contested the claim, arguing that they had acted reasonably and that the plaintiffs' costs were excessive. The court was required to determine whether the defendants' conduct warranted the imposition of indemnity costs, and if so, the appropriate basis for those costs.

The primary legal issue before the court was whether the defendants' conduct justified the award of indemnity costs to the plaintiffs. The court considered the principles surrounding indemnity costs, including the relevant provisions of the Civil Procedure Act and relevant case law. The court had to assess whether the defendants' conduct was unreasonable and whether the plaintiffs had made a Calderbank offer, which could affect the assessment of costs. The court also had to consider whether the costs claimed by the plaintiffs were reasonable and necessary.

In its decision, the court found that the defendants' conduct was unreasonable and that they had failed to make a genuine effort to resolve the dispute. The court concluded that the plaintiffs were entitled to indemnity costs from a certain date onwards. The court determined that the plaintiffs' costs were reasonable and necessary, and accordingly ordered the defendants to pay the plaintiffs' costs on the ordinary basis up to a specific date and on an indemnity basis from that date onwards. The court's decision was based on a detailed analysis of the conduct of both parties and the relevant legal principles.

Orders

Orders of the court

1. Further to order v) made 14 December 2012, it is ordered:

i) That the defendants are to pay the plaintiffs costs on the ordinary basis up to and including 22 September 2011.

ii) That the defendants are to pay the plaintiffs costs on an indemnity basis from 23 September 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Staunton v Cavallaro (No 3) [2013] NSWLC 6
Hearing dates:	By written submissions
Decision date:	07 February 2013
Jurisdiction:	Civil
Before:	Magistrate O'Brien
Decision:	1. Further to order v) made 14 December 2012, it is ordered: i) That the defendants are to pay the plaintiffs costs on the ordinary basis up to and including 22 September 2011. ii) That the defendants are to pay the plaintiffs costs on an indemnity basis from 23 September 2011.
Catchwords:	CIVIL LAW - costs - indemnity costs - Calderbank offers - principles
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules
Cases Cited:	Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 Calderbank v Calderbank [1975] 3 All ER 333 Chief Commissioner of State Revenue v Platinum Investments Management Ltd (No 2) [2011] NSWCA 197 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Hamod v State of New South Wales (2002) 188 ALR 659 Harrison v Schipp [2001] NSWCA 13 Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242 Leichhardt Municipal Council v Green [2004] NSWCA 341 Ofria v Cameron (No 2) [2008] NSWCA 242
Texts Cited:	Civil Trials Bench Book, Judicial Commission of New South Wales 'Calderbank Offers', Justice M J Beazley AO
Category:	Costs
Parties:	Victoria Lee Staunton (first plaintiff) Patrick Joseph Staunton (second plaintiff) Tom Paul Cavallaro (first defendant) Tom Paul Cavallaro Pty Ltd (second defendant)
Representation:	Mr B Gilbert (for the plaintiffs) Mr J Brigden (for the defendants)
File Number(s):	2011/00233066